Fair dealing

The fair dealing provisions in the Copyright Act are an exception to the exclusive rights of copyright owners. They allow some copying and/or communication for certain purposes to be done for free without infringing copyright.

Fair dealing only applies to

  • research or study: section 40(1) of the Act provides that copyright in a work or an adaptation of a literary, dramatic, musical or artistic work is not infringed by a fair dealing for the purpose of research or study. Similarly, under section 103C(1) copyright in an audio-visual item, or in a work included in an audio-visual item, is not infringed by a fair dealing made for the purpose of research or study;
  • criticism and review: section 41 of the Act provides that copyright in a work or an adaptation of a literary, dramatic or musical work, is not infringed by a fair dealing for the purpose of 'criticism or review', whether of that work or of another work, provided sufficient acknowledgement of the work is made. Any acknowledgement should identify the author and identify the work/audio-visual item from which the copies are taken by its title or other description. This category will rarely apply to multiple copying for distribution to students. However, it may apply to copying you do for yourself or for other staff. It may also apply to communications between academics for the purpose of academic criticism and discussion;
  • news reporting: section 42 of the Act provides that copyright in a work or an adaptation of a literary, dramatic, musical or artistic work, is not infringed by a fair dealing if:
    • it is for the purpose of, or is associated with, the reporting of news in a newspaper, magazine or similar periodical and a sufficient acknowledgement of the work is made; or
    • it is for the purpose of, or is associated with, the reporting of news by means of broadcasting or in a cinematograph film
  • professional legal advice: section 43 of the Act provides that the copyright in a literary, dramatic, musical or artistic work is not infringed by anything done for the purposes of a judicial proceeding or of a report of a judicial proceeding.

These provisions in the Act enable a reasonable portion of a work for any of the above purposes to be copied. However, the Act is not clear on what constitutes a 'reasonable portion'. The matters which must be considered in determining the fairness of the dealing include:

  • the purpose and character of the dealing - why are you copying the material?;
  • the nature of the work, adaptation or audio-visual item;
  • the possibility of obtaining the work, adaptation or audio-visual item within a reasonable time at an ordinary commercial price - how widely available is the work?
  • the effect of the dealing upon the potential market; and
  • in a case where only part of a work, adaptation or audio-visual item is copied or communicated - the amount and substantiality of the part copied or communicated in relation to the whole item.

In addition, the following limits prescribed in other parts of the Act may assist to determine if you are copying a 'reasonable portion':

  • 10 percent or one chapter of a book (whichever is the greater);
  • more than this if the work is out of print or unobtainable in a reasonable time;
  • the whole or part of an article in one issue of a periodical;
  • two or more articles in one issue of a periodical if they are on the same subject;
  • the whole or part of a literary or dramatic work in a published anthology if not more than 15 pages;
  • an artistic work which accompanies a literary or dramatic work for the purpose of explaining or illustrating text;
  • the whole or part of an artistic work if it is not separately published or is unobtainable in a reasonable time.

Where you are copying in accordance with these fair dealing provisions, permission need not be sought from the copyright owner, and no payment to the copyright owner is required.

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